Hate crime belongs in the courts

Sandy and Robert Shindleman's defamation lawsuit against a man who distributed allegedly anti-Semitic material on posters and the Internet is unusual. But it perfectly illustrates the conflicted state of Canadian law when it comes to complaints of incitement of racial hatred.

Winnipeg resident Gordon Warren admitted putting up posters last September in downtown Winnipeg that alleged criminal wrongdoings by Mayor Sam Katz and several local businessmen, including Sandy Shindleman. All but one of those named are Jewish.

The Shindlemans' lawsuit alleges Warren also, and more recently, sent emails and posted a blog that defames them. It claims Warren's assertions are not only false and defamatory but "were motivated by racism and anti-Semitism."

Police investigated the September posters, but the provincial department of justice decided they didn't meet the criteria of a hate crime under Canada's Criminal Code.

The police or Crown attorneys' office declining to charge someone normally doesn't foreclose criminal prosecution. Usually, someone can initiate a private prosecution, whereby an aggrieved individual, not the police, lays the charge and he or his lawyer, rather than a Crown attorney, conducts the prosecution.

However, this avenue, too, was closed to the Shindlemans. The Criminal Code prohibits prosecution of the crime of public incitement of hatred -- by the Crown or anyone else -- without the express approval of the province's attorney general. So far, Manitoba Attorney General Andrew Swan has refused his consent.

Human rights codes are the only other legal tool available to prohibit or punish publication of hate materials that target individuals or identifiable groups.

But provisions proscribing and penalizing materials designed to expose individuals or groups to hatred vary in language, breadth and scope province to province. And some provincial human-rights legislation -- including Manitoba's Human Rights Code -- contains no provision governing hate material. As it stands in Canada, what constitutes a hate-based human-rights violation either differs province to province or hasn't even made it into provincial legislation.

Tellingly, and almost coincidental with the Shindlemans' lawsuit, the Supreme Court of Canada rendered a decision that narrowed the ambit of a provincial prohibition of publication of hate materials. Just two weeks ago, the Supreme Court struck down part of Saskatchewan's Human Rights Code as unconstitutional, due to its violation of freedom of expression under the Charter of Rights and Freedoms.

Far preferable to this existing hodgepodge of conflicting and legally challengeable provincial legislation would be a negotiated federal-provincial protocol for the exercise of discretion to prosecute crimes of incitement to hatred, as suggested by Winnipeg lawyer, and senior legal counsel of B'nai Brith Canada, David Matas. Not only would this provide greater uniformity and certainty in the law, but it would also vest authority to adjudicate alleged hate crimes in the courts rather than human rights commissions and tribunals. Alleging hate speech or literature is a grave accusation best governed by the criminal courts, which demand a high threshold of evidence and robust burden of proof.

Meanwhile, in Manitoba, the Shindlemans, with no other legal remedy available to them, have resorted to the civil courts to adjudicate what is, in large measure, a hate-crimes issue.

Paradoxically, filing a civil claim may be the fastest way to get the main thing they want: a court order that stops Warren from communicating in any medium about them or their business. While their civil claim for monetary damages for harm to their reputations and business could take two or three years to get to trial, they've also launched a still-pending interim application that seeks an immediate injunction to silence Warren.

Regardless, a civil claim that deals with issues normally the domain of the criminal law isn't, as a matter of public policy, the best way to combat alleged racial hatred. But in Manitoba, apparently it's the only way.